A question not clearly answered by the D.C. Court of Appeals, once Ms. Valentine was not evicted, was whether the rationale behind the decision meant that the VA was obligated to act as a landlord -- including providing her with adequate heat, as required by the D.C. Housing Code. See 5G DCRR §§ 1201, 2407 (1982) (now codified at D.C. Mun. Regs. tit. 14, §§ 500, 501 (1986)). The D.C. Court of Appeals addressed this question only by noting in a footnote that "§ 45-1561 does not require the VA to serve as landlord against its will; it simply prohibits evicting persons . . . ." Valentine, 490 A.2d at 1170 n.9. Although defendant in the instant case cites this as conclusive law, it is noteworthy that the Court did not state that "the VA does not have to serve as a landlord," but only that the anti-eviction statute did not require it. The question was further complicated by Judge Terry's dissent, which said that the majority opinion "will turn any foreclosing lender who acquires title to property . . . into an unwitting -- and often unwilling -- landlord, subject to the stringencies of the . . . Housing Act." Id. at 1172 (Terry, J., dissenting).

The instant Court is then faced with a dilemma. The first choice would be to read the Valentine case narrowly, holding that just because a tenant cannot be evicted does not mean that the owner is obliged to provide heat. While this solution would provide the VA with the traditional protection that no one is forced to become a landlord against his will,
*fn3"
it could also effectively eviscerate the anti-eviction law. Under a scheme in which an owner by foreclosure owes no duty to the resident -- as is argued by defendant -- an owner such as the VA could cut off the heat, electricity, gas, and water to a unit and still comply with law.
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The owner could even take steps in an intentional effort to "constructively" evict the resident from her unit. Indeed, in the instant case an official of the VA admitted that one of the reasons for the VA's failure to provide heat was the hope that the lack of heat would encourage Ms. Valentine to abandon her apartment. See Deposition of Herbert Fenster at 55. The Court believes that such a solution cannot co-exist with the strong anti-eviction policy of D.C. Code Ann. § 45-1561 (1981) (now replaced by the similar D.C. Code Ann. § 45-2551 (1986)).

The second alternative is to read § 45-1561 and the D.C. Court of Appeals' decision in Valentine as requiring that an owner who cannot or does not evict a resident provide heat to that resident. This policy also has its problems. In addition to going beyond the apparent contemplation of the D.C. Court of Appeals in Valentine,5 it could create a tremendous disincentive to those, such as the VA, who would lend funds or guarantee mortgages for the purchase of rental properties.
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However, it often is true that laws designed to protect consumers in their business transactions -- such as usury laws -- may end up decreasing the number of times that businesses are willing to enter into these transactions at all. However, because the policy decision to adopt § 45-1561 was made by the D.C. government, the Courts must give effect to the measure.
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This Court concludes that the anti-eviction law, as interpreted by the D.C. Court of Appeals, must implicitly be held to have required an owner by foreclosure to provide heat to residents who it does not evict, pursuant to 5G DCRR § 1201, 2407 (1982) (now codified at D.C. Mun. Regs. tit. 14, §§ 500, 501 (1986)). In sum, the Court concludes that the D.C. Court of Appeals, were it to address to issue left unresolved in Valentine, would hold that the VA was obligated to provide heat to Ms. Valentine's apartment.

Once it is established that defendant had a duty to heat plaintiff's apartment, the Court must address the question whether defendant's failure to do so constitutes negligence per se and whether possible negligence on the part of plaintiff may block her recovery.

District of Columbia law on negligence per se and its relationship with contributory negligence is less than crystal clear. However, it is clear that violation of a safety regulation constitutes negligence per se toward those who are injured in the manner envisioned by the safety regulation. E.g., Perkinson v. Gilbert/Robinson, Inc., 261 U.S. App. D.C. 198, 821 F.2d 686, 691-92 (D.C. Cir. 1987) (violation of a regulation requiring safe stairs); Bowman v. Redding & Co., 145 U.S. App. D.C. 294, 449 F.2d 956, 964 (D.C. Cir. 1971) (violation of a construction safety regulation); Stevens v. Hall, 391 A.2d 792, 795 (D.C. 1978).

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